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The birth control fight isn’t over

Dozens of nonprofit groups have also challenged the administration's contraception coverage policy. (Flickr)

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Even after Monday's Supreme Court decision, the fight over the Obama administration's contraception coverage requirement is far from over.

The court said that closely held companies can claim a religious exemption from having to provide female employees with no-cost birth control. However, there's another set of legal challenges still pending from religiously affiliated nonprofit groups who received an accommodation from the administration — one that they say doesn't go far enough.

The remaining challenges

Following outcry from Catholic groups, the administration in early 2012 offered a carveout for religiously affiliated nonprofits, like hospitals and universities, that objected to providing contraception coverage to their employees. The administration said those groups can inform the government they have a religious objection, and their employees can then obtain stand-alone contraception coverage through an insurer.

At least 51 nonprofit lawsuits have been filed against the administration's policy by groups that say the accommodation still forces them to violate their religious beliefs since they have to arrange for the contraception coverage. Some of those challenges have reached the appellate court level, and just this past New Year's Eve, Justice Sonia Sotomayor temporarily blocked the administration from enforcing the requirement against the Little Sisters of the Poor, a group of Colorado nuns.

As SCOTUSblog pointed out over the weekend, two more religious-affiliated groups on Friday asked for a similar protection from the contraception rule. "It is now nearly a certainty" that the Supreme Court will take up the nonprofit challenges to the contraception requirement next term, according to SCOTUSblog.

What Monday's ruling could mean

The five conservative justices on the court ruled that a 1993 law protecting freedom of religious exercise to individuals also extends to the owners of closely held for-profit companies. That law, the Religious Freedom Restoration Act, actually would have allowed the government to enforce the mandate for these companies if the government proved that its contraception policy was the least burdensome way of ensuring widespread access to birth control — but that standard wasn't met in this case, the court found.

The court, however, suggested other ways that the government could meet its goal without burdening employers. The justices suggested that the accommodation the government offered to religiously affiliated nonprofits would have been a more acceptable way for the government to approach the contraception rule when it comes to for-profit employers. "[The government] could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate. That accommodation does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves HHS’s stated interests," Justice Samuel Alito wrote in the opinion. The court's opinion said it wasn't commenting on whether the accommodation provided enough protection for the religious-affiliated nonprofits, though.

Marcia Greenberger, co-president of the National Women's Law Center, which supports the contraception policy, said she read the court's comments "as a signal" that the justices would rule against the nonprofits if their cases reached the Supreme Court. "There's certain signs ... that would indicate the accommodations are acceptable and that the kinds of burdens that these employer entities are complaining about would not be viewed as substantial enough," she said.

Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, which represents the groups challenging the contraception policy, has a different read. He pointed out that the court said the government has other, less restrictive ways of achieving its goal to expand contraception access without making anyone compromise their religious beliefs. The court said the least restrictive method would be for the government to provide contraception coverage directly.

"The fact of the matter is in any case, those options will always be available, and they're always less restrictive than crushing some nuns for not signing some form," Rienzi said on a press call.

Rienzi said he believes the plaintiffs challenging the rule likely wouldn't oppose having the government provide the benefit directly. As for what approach the government will take, White House spokesman Josh Earnest said the administration is still assessing the implications of the court's decision.

Top health policy reads from around the Web:

The politics of the Hobby Lobby decision. "The ruling also allows Republicans to say that Obama and his law have violated one of the most respected constitutional protections: freedom of religion. ... The court’s decision isn’t risk-free for Republicans. Democrats and abortion rights supporters are ready to pounce if it looks like Republicans are celebrating too loudly. They say this is fundamentally a fight about allowing women to control their own destinies and their own bodies, not about employers’ religious beliefs." David Nather and Jennifer Haberkorn in Politico.

A new pathway for telemedicine. "Officials representing state medical boards across the country have drafted a model law that would make it much easier for doctors licensed in one state to treat patients in other states, whether in person, by videoconference or online. The plan, representing the biggest change in medical licensing in decades, opens the door to greater use of telemedicine and could alleviate the doctor shortage, a growing problem as millions of people gain insurance coverage under the Affordable Care Act." Robert Pear in the New York Times.

California's exchange is having some issues. "Frustration and legal challenges over the network of doctors and hospitals for Obamacare patients have marred an otherwise successful rollout of the federal healthcare law in California. Limiting the number of medical providers was part of an effort by insurers to hold down premiums. But confusion over the new plans has led to unforeseen medical bills for some patients and prompted a state investigation." Chad Terhune in the Los Angeles Times.

Jason Millman covers all things health policy, with a focus on Obamacare implementation. He previously covered health policy for Politico.



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